This is the first instalment of a three-part series on the arrest warrant recently made public implicating a Kenyan lawyer and another Kenyan individual in connection with bribery allegations involving six ICC prosecution witnesses. This first part looks at the details given in the arrest warrant issued under seal on March 10, 2015 and made public in September 2015.

The International Criminal Court’s Pre-Trial Chamber II has now issued two arrest warrants in connection with bribery allegations involving three Kenyan individuals and eight prosecution witnesses.

On September 10, 2015, Pre-Trial Chamber II made public a redacted version of a second arrest warrant for witness tampering in Kenya. Judge Ekaterina Trendafilova made the decision to issue the warrant against lawyer Paul Gicheru and Philip Kipkoech Bett in March 2015. After the Kenyan authorities arrested Gicheru and Bett on July 30, 2015, Pre-Trial Chamber II decided to make redacted versions of the warrant and related decision public. The chamber determined there was no longer any reason to keep the warrant under seal.

The chamber issued its first arrest warrant for bribery on August 2, 2013 against former Kenyan journalist Walter Osapiri Barasa in connection with bribery allegations involving three prosecution witnesses. A redacted version of that decision and warrant was made public on October 2, 2013. The Kenyan High Court validated the arrest warrant, but Barasa has challenged it and the matter is currently before the Kenyan Court of Appeal.

The March 10 decision and warrant do not specify which ICC trial the six witnesses were involved in. However, five of the pseudonyms used for them in the arrest warrant match those of five witnesses who have already testified before Trial Chamber V(a) in the trial of Kenyan Deputy President William Samoei Ruto and former journalist Joshua arap Sang, which suggests that they may be witnesses in that trial. Given the context of these trials, this post assumes that the witnesses involved were witnesses in the Ruto and Sang trial.

Witness Tampering Allegations

The allegations against Gicheru and Bett fall under Article 70 of the ICC’s Rome Statute. This article covers offences against the administration of justice, which are distinct from the crimes against humanity and war crimes that are also covered by the Rome Statute.

The prosecution alleges that Gicheru and Bett paid or offered each of the six prosecution witnesses between 500,000 shillings (at current exchange rates, 4,734 US dollars) and five million shillings (47,344 US dollars) to withdraw as witnesses.

The warrant charges Gicheru with six counts of bribing or attempting to bribe a witness, and charges Bett with four counts of the same. The prosecution’s February 9 application remains confidential, and a redacted version has not been posted on the ICC’s website. But in her decision to issue the arrest warrant, Judge Trendafilova stated that the prosecution application alleged that Gicheru is the manager of a scheme to bribe witnesses. Judge Trendafilova said the prosecution alleged that Bett assisted Gicheru in this scheme.

The alleged bribery or attempts to bribe were made between April 2013 and September 2013. In the case of one witness, the suspects are alleged to have remained in touch with that witness until January 2014.

The Prosecution Witnesses

According to the arrest warrant, the witnesses Gicheru and Bett are alleged to have interfered with are: Witness 397, Witness 495, Witness 516, Witness 536, Witness 613, and Witness 800. Five of them appear to have testified in the trial of Ruto and Sang, with Witness 397 being the only one not to testify.

Of those who testified, Witness 495 and Witness 516 were part of a group of eight witnesses that in April 2014 was ordered to be compelled to appear in court by Trial Chamber V(a). The prosecution applied for such an order because the witnesses recanted their statements or ceased contact with the prosecution. Both of them testified between September 16, 2014 and September 26, 2014. Trial Chamber V(a) approved a deal the prosecution offered the witnesses: in exchange for testifying about their role in allegations of witness interference, they would not be prosecuted for offences against the administration of justice. The only caveat to this deal was they should not commit perjury, which is an offence under Article 70 of the Rome Statute.

The time the alleged bribery or attempted bribery took place coincides with the initial start date of the trial of Ruto and Sang, which was April 10, 2013. The trial was postponed twice before eventually starting on September 10, 2013. Lawyers for Ruto and Sang have repeatedly said in public statements and submissions that their clients have not been involved in any attempts to interfere with witnesses in their trial.

In their decisions to admit as evidence statements of five witnesses who had recanted or failed to testify, the judges of Trial Chamber V(a) stated that they did not see any evidence linking Ruto or Sang to any allegation of witness interference. They stated this because the prosecution presented them with 231 items, numbering 1,957 pages, to back up its allegations of witness interference. It was important for the judges to state this because one of the conditions for Ruto and Sang to appear before the ICC on summons is that they do not interfere with witnesses either directly or indirectly. If they are found to have interfered with witnesses directly or indirectly, that could lead to their summons being converted to arrest warrants.

The next article in this series will offer details about Witness 397 and Witness 536.

4 Comments

Bribery? It makes me laugh. Turn Bensouda, face a flashback to Kenyatta and Five Others v R (1953) where on one hand Kenyatta’s lawyers claimed that Rawson Macharia had been bribed to testify against Jomo. You see the original prosecution theory at Kapenguria was based on colonial policeman’s evidence which suggested that Kenyatta must be presumed to be the Mau Mau manager since he wrote “Facing Mount Kenya” an anthropological account of Gikuyu folklore with a foreword by the famous Bronislav Malinowski of London School of Economics. By dignifying African culture he was deemed to have written an Africanist Manifesto i.e. The prosecution theory was that because “knowledge is power” and since Kenyatta had knowledge of Gikuyu rites de passage, therefore he must have been behind the Mau Mau insurrection. However Judge Ransley Thacker did not convict Kenyatta using that abstract approach. Instead, an alternative theory based on concrete eye-witness evidence was required so as to de-legitimize a genuine independence struggle and characterize Kenyatta as some kind of villain. So the Crown paid Kenyatta’s next door neighbour, Macharia, to say that he actually saw Kenyatta oathing Mau Mau to engage in unlawful activities etc. They gave him 2,500 sterling pounds , a trip to UK etc. Read Macharia’s “The Truth about the Trial of Jomo Kenyatta (1990) or even David Anderson’s “History of the Hanged: End of Empire and Britain’s Dirty War in Kenya” (2005).

But when around 1958 Kenyatta’s advocate attempted to review Judge Thacker’s conviction, instead the Crown authorities accused Macharia of lying and fabricating stories. They convicted him for perjury of swearing a false affidavit. What happened then was that Kenya’s founding father was convicted on the basis of false evidence, procured by a dishonest prosecution, and he remained incarcerated for seven years and subsequently detained. The Kapenguira trial demonstrates how criminal trials can be misused to occasion miscarriages of justice for political purposes.

Now, fast forward to the trial of Uhuru Kenyatta and William Ruto. Here we witness contested attempt to allegations first, by International Chief Prosecutors Ocampo’s successor Fatou Bensouda alleging in 2013 that the Kenyan cases have witnessed the worst case of bribery, intimidation and possibly elimination of witnesses in the ICC’s history. Yet one wonder why the prosecution diod not safeguard such key witnesses in the first place. Nothing could have been easier to not only video record their testimonies, but better still, transfer them to safe havens to insulate them from interference.

On the other hand, the Ruto defence has maintained all along that witnesses were bribed to fix his client. Gatundu MP Moses Kuria has this week “owned up” to such activity. The timing of Kuria’s confession is suspicious to say the least. He seems bent on rescuing a political friend for purposes of shoring up URP’S support for TNA at the 2017 presidential election. Rift Valley’s voter bloc demand that TNA politicians must rescue Ruto and Sang or expect withdrawal of support. Such desperate tactics are fair game from accused persons fighting for their lives to avoid having to be put on their defences for crimes against humanity.

Nonetheless, the onus is on the prosecution to have sanitized and sealed all such loop holes before charging suspects with “treason”. That charge is so serious that there is no room for grey area. Upon failing to establish any positive case, the suspects must immediately benefit from any doubts raised. It is doubtful that the witnesses were originally bribe-proof. This is because it is possible (as it happened at Kapenguria) that indeed, the prosecution may have been unethical in obtaining witness statements in the first place. If so, then suppose the defence engage in counter-bribery to negate the original sin other than by “fighting fire with fire?” two wrongs may not make a right, but how else can one fight a fabricated charge – if indeed it is fabricated? In 1959, despite Jomo successfully obtaining an affidavit confession from Macharia admitting that the British had bribed him, instead Macharia got convicted for perjury. Macharia subsequently wrote a book admitting the truth. Now, in the 21st century, after Kenyan advocates Paul Gicheru and Philip Kipkoech bett – who it must be empahsized are neither Ruto’s nor Sang’s lawyers – obtained affidavits confessing bribery by ICC prosecutor’s, instead ICC is hell-bent on punishing Gicheru and Bett for obstructing the administration of justice. In my humble view, even-handedness would at the very least require that the original claims that Ocampo may have procured prosecution witness statements through bribery should also be investigated. Otherwise, the ICC may be perceived as acting a judge in its own cause, and therefore biased, and any punishment meted out on the Kenyan lawyers attracts an order of judicial review by an independent court, possibly the European Court of Human Rights since the latter is famous for its activism in favour of upholding fundamental rights and the ICC is located in European jurisdiction. You see public policy demands that lawyers should be immune from punishment if they act professionally on behalf of clients. Otherwise citizens who suspect that they may be involved in wrongdoing shall not have anyone whom they can consult for advice regarding their activities. The right to legal representation generates lawyer-client privilege. By threatening to punish Kenyan advocates, the ICC may be suggesting that advocates have no role in representing suspects, victims or witnesses who may consult them for legal advice about international criminal law or evidence. Yet lawyers take an oath to uphold the law and administer justice without fear or favour.